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FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT APRIL 5, 2012

JOHN LEYCLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 09-16027 ________________________

D.C. Docket Nos. 08-00029-CR-1-SPM-AK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,versus

WILLIE DEWEY KEEN, JR.,a.k.a. Billy Keen,

Defendant-Appellant.

________________________

Nos. 09-16028, 10-10438, 10-10439 ________________________

D.C. Docket Nos. 08-00039-CR-1-SPM-AK, 1:08-cr-00039-SPM-AK-3,1:08-cr-00039-SPM-AK-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versusJOHN LEE DRIGGERS,

Case: 10-10438 Date Filed: 04/05/2012 Page: 1 of 37

USA v. Alton James Land Doc. 1116500989

Dockets.Justia.com

http://dockets.justia.com/docket/circuit-courts/ca11/10-10438/

http://docs.justia.com/cases/federal/appellate-courts/ca11/10-10438/1116500989/

http://dockets.justia.com/

WILLIE DEWEY KEEN, JR.,a.k.a. Billy Keen,ALTON JAMES LAND,

Defendants-Appellants.

________________________

Appeals from the United States District Court for the Northern District of Florida

________________________

(April 5, 2012)

Before MARTIN, HILL and EBEL, Circuit Judges.*

MARTIN, Circuit Judge:

Mr. Willie Keen is a former zoning official for Dixie County, Florida,

appealing convictions arising from two different cases consolidated on appeal. In

one case (No. 09-16027), a jury convicted Mr. Keen of fraudulently obtaining low-

income housing funds in violation of federal criminal law. In the other case (Nos.

09-16028, 10-10438, and 10-10439), a jury convicted Mr. Keen, together with

former Dixie County Commissioners John Driggers and Alton Land, of federal

bribery charges that stemmed from an undercover investigation of corruption in

Dixie County.

Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by*

designation.

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On appeal, Mr. Keen, Mr. Driggers, and Mr. Land challenge their

convictions. Mr. Keen also contests his sentence. After careful review of the

record and the parties’ briefs, and after having had the benefit of oral argument, we

affirm all convictions. However, because we conclude that the District Court erred

in calculating Mr. Keen’s sentence, we remand to the District Court with a mandate

to vacate the sentence and re-sentence him consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts (No. 09-16027)

In 2002, Mr. Keen enlisted the help of his girlfriend, Kim Deneise Lashley,

to obtain low-income housing grant funds to renovate his home. At the time, Mr.

Keen was a zoning inspector and codes enforcement officer for Dixie County. Ms.

Lashley applied for the funds in her name using a number of documents that had

been altered. These documents included a warranty deed, a property tax bill, and a

homeowner’s insurance policy document. In all of these documents, Mr. Keen’s

name had been whited-out and Ms. Lashley’s name had been hand-written into the

space where Mr. Keen’s name had previously been.

In 2003, Dixie County awarded Ms. Lashley funds to renovate his property.

The funds came from both the state low-income housing program and the federal

Community Development Block Grant program. Dixie County was entrusted with

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distributing both funds. Mr. Keen personally arranged for a contractor to do the

renovation work. Five separate payments totaling $32,010 were made by Dixie

County to the construction contractor for the renovation work. The first of these

payments was on February 4, 2003. The last payment, in the amount of

$16,368.40, was on October 3, 2003. Estimates of the total amount of federal

funds involved range between $112 and $2,500. FBI Special Agent Jeffrey

Thornburg discovered the fraud in December 2004 while investigating improper

applications for state and federal low-income housing funds.

B. Facts (Nos. 09-16028, 10-10438, 10-10439)

Agent Thornburg first went to Dixie County in response to reports to the FBI

about criminal activity there. Some of these reports focused attention on Mr. Keen,

who had been convicted in 1990 of paying voters in a Dixie County election.

Based on allegations against Mr. Keen, Agent Thornburg looked into suspicious

housing records in Dixie County and unexpectedly encountered Mr. Keen.

Following this encounter, which led to a threat of prosecution, Mr. Keen agreed to

cooperate and to wear a wire to record others involved in criminal activity.

Between March 2005 and April 2006, Mr. Keen recorded several conversations,

but Agent Thornburg found him to be indifferent and unresponsive at times.

Later, the FBI set up an undercover operation to investigate complaints about

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Dixie County corruption. FBI Special Agent Sean Quinn was sent in undercover as

a representative of a fictitious development company based in New Jersey. Agent

Quinn assumed the persona of “Sean Michaels” and first visited Dixie County in

July 2006. He was advised by a local real estate agent to meet with Mr. Keen as

well as then-Dixie County Commissioner Land. On August 2, 2006, Agent Quinn,

posing undercover as Sean Michaels, met Mr. Keen for lunch. Mr. Keen was not

aware that Agent Quinn worked for the FBI. The two talked about zoning and

permitting. The next day, there was a meeting of the Board of County

Commissioners. During a lunch recess, Agent Quinn (again, posing undercover as

Sean Michaels) told Commissioners Driggers and Land that he was interested in

land development in Dixie County. Commissioner Land immediately mentioned

that he had property on sale for $3.5 million. Agent Quinn told the commissioners

his job was to make sure his company got what it wanted and to resolve any issues

or problems in advance.

On August 9, 2006, Agent Quinn, posing as Sean Michaels, met with

Commissioner Land to see the property that was for sale. Later that day, Agent

Quinn met with Mr. Keen and Commissioner Driggers and discussed development

possibilities. At the meeting, Agent Quinn wore a concealed audio recording

device. After Commissioner Driggers left the restaurant, Mr. Keen stopped Agent

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Quinn as they were leaving and told him that “they prefer cash,” referring to

Commissioners Driggers and Land. Agent Quinn then invited Mr. Keen into his

truck to discuss the amount of money for each commissioner. Agent Quinn told

Mr. Keen that he had only $1,200 with him, but that he would agree to pay

Commissioners Driggers and Land $5,000 each and would begin by giving each of

them $600. Mr. Keen said that Commissioner Driggers had asked that he, Mr.

Keen, be the one to accept the cash payments. At that point, Agent Quinn gave Mr.

Keen $1,200 to distribute. Of this, Mr. Keen evidently gave $300 to Commissioner

Driggers and kept the rest for himself.

The next day, Agent Quinn called Mr. Keen and received assurance that the

money either had been or was going to be paid to Commissioners Driggers and

Land. During the call, Agent Quinn offered money to Mr. Keen, but Mr. Keen

declined. Later the same day, Mr. Keen called Agent Thornburg. He allegedly told

Agent Thornburg that there was a developer who wanted to pay Commissioner

Land for permits and that the money was to be disguised as a campaign

contribution.

On August 23, 2006, Agent Quinn met with Commissioner Land, who

indicated that the $5,000 payment previously discussed with Mr. Keen was fine.

Commissioner Land was given a $2,000 payment at that time. Agent Quinn

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allegedly stressed to Commissioner Land that the money was for buying his

favorable vote on the Board of County Commissioners, not for purchasing

property. Commissioner Land indicated everything would go smoothly because the

development would have the votes of three commissioners. Commissioner Land

said that he would give another commissioner $1,000 to get his vote of support.

Later on the same date, Commissioner Driggers accepted $3,000 from Agent Quinn

for his vote. Commissioner Driggers and Agent Quinn also discussed Mr. Keen’s

prior receipt of money, and Commissioner Driggers told Agent Quinn that Mr.

Keen had only given him $300. Commissioner Land later advised Agent Quinn

that he would get his share from Mr. Keen. Commissioner Driggers said he was

confident Mr. Keen was using the extra cash to help him.

On August 25, 2006, Mr. Keen tried to contact Agent Thornburg. That same

day, he recorded a conversation with Commissioner Land. During the

conversation, Mr. Keen told Commissioner Land that Mr. “Michaels” had made a

hint about making a campaign contribution and that Mr. Keen had told Mr.

Michaels “they’d rather have cash than they would [a] check.” Mr. Keen said

nothing about having received money from Agent Quinn. Then, on August 28,

2006, Agent Thornburg and Mr. Keen were able to reach each other by phone.

During the conversation, Mr. Keen allegedly provided Agent Thornburg with the

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name and address of Mr. Michaels and told Agent Thornburg that Mr. Michaels

had given him $600, half of which he passed on to Commissioner Driggers.

Over the course of the next couple months, Agent Quinn gave thousands of

dollars more to Commissioners Driggers and Land. Both commissioners later lost

their elections. On November 15, 2006, Agent Quinn met with Commissioner

Driggers and then with Commissioner Land. During the meetings, both

commissioners offered to continue to assist Agent Quinn in obtaining any

necessary rezoning.

C. Procedural History (No. 09-16027)

On September 23, 2008, a federal grand jury indicted Mr. Keen for violating

18 U.S.C. §§ 666 and 2 by fraudulently obtaining property from a local government

receiving federal funds. A jury trial was held. At the start of the trial, Mr. Keen1

objected to the government’s proposed jury instruction regarding the meaning of

“agent,” as that term is defined in 18 U.S.C. § 666. The District Court took the

question under consideration until the close of evidence. Mr. Keen also expressed

to the Court concern about the statute of limitations. At the close of the

government’s case-in-chief, Mr. Keen moved for judgment of acquittal as a matter

Title 18 U.S.C. § 2 provides that one who “aids, abets, counsels, commands, induces or1

procures” the commission of an offense against the United States “is punishable as a principal.” 18 U.S.C. § 2(a).

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of law. He argued that the statute of limitations had expired before his indictment

on September 23, 2008, and that the government’s proof was not sufficient to

establish that Mr. Keen was an “agent” for purposes of § 666. The District Court

denied Mr. Keen’s motion and gave the jury instruction proposed by the

government, which was modeled after the Eleventh Circuit’s Pattern Jury

Instructions (Criminal Cases), Offense Instruction 24.2. The jury found Mr. Keen

guilty as charged.

D. Procedural History (Nos. 09-16028, 10-10438, 10-10439)

In October 2008, a federal grand jury returned an indictment charging Mr.

Keen, Mr. Driggers, and Mr. Land with conspiring to commit fraud involving an

organization receiving federal funds in violation of 18 U.S.C. §§ 371 and

666(a)(1)(B); accepting or agreeing to accept a bribe, in violation of 18 U.S.C. §§

666(a)(1)(B) and 2; and making a false statement to the FBI, in violation of 18

U.S.C. § 1001(a). Following a four-day trial in August 2009, each defendant was

convicted as charged. Throughout the trial, excerpts from numerous audio and

video recordings made during the undercover bribery investigation were played for

the jury. Several weeks after the jury verdict, the District Court acquitted Mr. Keen

of making a false statement, but denied all other motions for judgment of acquittal.

The District Court then sentenced the defendants. Mr. Driggers and Mr. Land were

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each sentenced to thirty-seven months imprisonment. Mr. Keen was sentenced

simultaneously for his offenses in Case Nos. 09-16027 and 09-16028. After his

objections to the calculation of his Guideline sentence were overruled, Mr. Keen

received two concurrent seventy-eight-month sentences of imprisonment, followed

by three years of supervised release.

II. DISCUSSION

A. Defining “Agent” (No. 09-16027)

Mr. Keen first contests the sufficiency of the evidence supporting his

conviction under 18 U.S.C. §§ 666 and 2 for fraudulently obtaining property from

an organization receiving federal funds (No. 09-16027). To obtain a conviction

under § 666, the government was required to establish the following elements: (1)

Mr. Keen was an agent of Dixie County; (2) Mr. Keen obtained by fraud property

that was owned by, or under the care, custody, or control of Dixie County; (3) the

fraudulently obtained property had a value in excess of $5,000; and (4) during a

continuous one-year period beginning no earlier than one year prior to Mr. Keen’s

fraudulent conduct and ending no later than one year after the conduct, Dixie2

County received in excess of $10,000 under a federal program involving federal

So long as it does not exceed one year, “[s]uch period may include time both before and2

after the commission of the offense.” 18 U.S.C. § 666(d)(5).

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assistance monies. See 18 U.S.C. § 666.

On appeal, Mr. Keen claims the government failed to prove the first element,

that is, that he was an agent of Dixie County. He does not dispute that he was a

zoning official employed by Dixie County. But he insists that this alone was not

sufficient to qualify him as an agent of Dixie County under 18 U.S.C. § 666. That

is because, according to Mr. Keen, for an individual to qualify as an agent of an

entity, the individual must be authorized to act on behalf of the entity specifically

with respect to its funds. And because the government did not offer evidence

showing that he was authorized to act with respect to Dixie County’s funds, Mr.

Keen asserts that the District Court erred in denying his motion for judgment of

acquittal.

We review de novo both the denial of a motion for a judgment of acquittal

and the sufficiency of the evidence to sustain a conviction, viewing the evidence in

the light most favorable to the government and drawing all reasonable inferences

and credibility choices in favor of the jury’s verdict. United States v. Tampas, 493

F.3d 1291, 1297–98 (11th Cir. 2007). We review questions of law and application

of statutes de novo. United States v. McNair, 605 F.3d 1152, 1213 n.87 (11th Cir.

2010).

Because Mr. Keen’s argument turns on an interpretation of the term “agent”

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that is unsupported by the plain language of § 666, we reject it. The statute defines

an “agent” as “a person authorized to act on behalf of another person or a

government and, in the case of an organization or government, includes a servant

or employee, and a partner, director, officer, manager, and representative.” 18

U.S.C. § 666(d)(1). Nowhere does the statutory text either mention or imply an

additional qualifying requirement that the person be authorized to act specifically

with respect to the entity’s funds. Rather, this is something Mr. Keen urges us to

read into the statute in order to contain its broad scope for prosecuting fraud and

corruption within entities that receive federal assistance funds. To be sure, Mr.

Keen points out that the Fifth Circuit adopted a similar interpretation of the term

“agent” in United States v. Phillips, 219 F.3d 404 (5th Cir. 2000). However, absent

the need to avoid absurd consequences, we generally may not reinterpret the plain

meaning of a statute. United States v. Brown, 333 U.S. 18, 27, 68 S. Ct. 376, 381

(1948). And because Mr. Keen has not shown how any absurd consequence would

result from applying the plain text of the statute, we must decline to read into the

definition of “agent” a requirement that the person be authorized to act with respect

to the entity’s funds. Instead, we conclude that to qualify as an agent of an entity,

an individual need only be authorized to act on behalf of that entity.

Section 666’s legislative history and related Supreme Court jurisprudence

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validate this interpretation. Entitled “Theft or bribery concerning programs

receiving Federal funds,” 18 U.S.C. § 666 was enacted “to protect the integrity of

the vast sums of money distributed through Federal programs from theft, fraud, and

undue influence by bribery.” S. Rep. No. 98-225, at 370 (1983); accord Sabri v.

United States, 541 U.S. 600, 606, 124 S. Ct. 1941, 1946 (2004). According to the

Supreme Court, to effectuate this purpose, Congress did not limit itself merely to

going after corrupt individuals who abuse their positions to skim federal funds. In

addition, Congress was committed to the even broader objective of ensuring “the

integrity of organizations participating in federal assistance programs.” Fischer v.

United States, 529 U.S. 667, 678, 120 S. Ct. 1780, 1787 (2000). The recognition of

that ambitious objective, in turn, has led the Court repeatedly to reject statutory

constructions aimed at narrowing § 666’s scope, in favor of a broad reading. See

Sabri, 541 U.S. at 606–07, 124 S. Ct. at 1946–47 (rejecting reading into the statute

an extra-textual requirement of connection with federal money because doing so

would unnecessarily obstruct the federal interest in addressing risks to federal

monies); Fischer, 529 U.S. at 677–79, 120 S. Ct. at 1787–88 (favoring a broad

definition of “benefits” in order to realize “Congress’ expansive, unambiguous

intent” to ensure organizational integrity, id. at 678, 120 S. Ct. at 1787); Salinas v.

United States, 522 U.S. 52, 57–59, 118 S. Ct. 469, 473–74 (1997) (pointing to the

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lack of a basis in either the text of § 666 or its legislative history “to circumscribe

the statutory text”).

This legislative history and case law together reinforce the conclusion that

the plain language interpretation of § 666 best reflects Congress’ intent. Mr. Keen

argues that Congress could not possibly have intended to target thieves and cheats

who are defrauding their employer, if the employees are not abusing their positions

in order to do so. But, even if these thieves and cheats are not specifically using

their positions to defraud the entity employing them, it cannot be denied that their

fraudulent conduct poses a threat to the integrity of the entity, which in turn poses a

threat to the federal funds entrusted to that entity. Cf. Fischer, 529 U.S. at 681–82,

120 S. Ct. at 1789 (“Fraudulent acts threaten the [federal] program’s integrity.

They raise the risk participating organizations will lack the resources requisite to

provide the level and quality of [service] envisioned by the program.”). Thus,

reading § 666 to narrow its scope seems inconsistent not only with the “expansive,

unqualified language” that Congress has elected to use, Salinas, 522 U.S. at 56, 118

S. Ct. at 473, but also with Congress’ clear objective of ensuring the integrity of

entities receiving substantial sums of federal funds.

This analysis also explains why Mr. Keen’s constitutional concern regarding

the scope of § 666 lacks merit. Mr. Keen suggests that, without a limiting

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construction, § 666’s application to local government employees who have no

authority over federal funds would exceed Congress’ powers under the Spending

Clause and the Necessary and Proper Clause. But “Congress does not have to sit

by and accept the risk of operations thwarted by local and state improbity.” Sabri,

541 U.S. at 605, 124 S. Ct. at 1946. Under the Necessary and Proper Clause,

Congress may take any means “rationally related” to implementing its

constitutionally enumerated powers, United States v. Comstock, __ U.S. __, __,

130 S. Ct. 1949, 1956–57 (2010), and hence has authority “to see to it that taxpayer

dollars appropriated under [the Spending Clause] are in fact . . . not frittered away

in graft or on projects undermined when funds are siphoned off.” Sabri, 541 U.S.

at 605, 124 S. Ct. at 1946. Clearly, measures to police the integrity of entities

receiving federal funds fall under the scope of this power. And just as it is

constitutionally immaterial under § 666 if siphoned funds cannot be traced to

specific federal dollars, see id. at 605–06, 124 S. Ct. at 1946 (emphasizing that

“[m]oney is fungible” and “can be drained off here because a federal grant is

pouring in there,” id. at 606, 124 S. Ct. at 1946); Salinas, 522 U.S. at 56–57, 118 S.

Ct. at 473–74, we conclude it is similarly immaterial under the Constitution if

funds are siphoned off in a way that does not involve an abuse of one’s job-related

authority. As the Supreme Court has made clear, it is “enough” for constitutional

15


purposes “that the statutes condition the offense on a threshold amount of federal

dollars defining the federal interest.” Sabri, 541 U.S. at 606, 124 S. Ct. at 1946.

Having rejected Mr. Keen’s reading of the term “agent,” we turn to whether

the government established that Mr. Keen was an agent of Dixie County under the

plain language of the statute. The heart of this inquiry is whether the government

proved that he was “authorized to act on behalf of” Dixie County at the time he

fraudulently obtained the low-income housing funds. 18 U.S.C. § 666(d)(1). At

trial, the government presented uncontested evidence that Mr. Keen was employed

as a zoning inspector and codes enforcement officer of Dixie County during the

time he committed fraud. In this role he drove a county vehicle. Thus, the jury

heard evidence that Mr. Keen was a county employee assigned to help enforce its

codes and who was authorized to use county assets to perform his work. This was

sufficient evidence from which the jury could conclude beyond a reasonable doubt

that he was “authorized to act on behalf of” Dixie County. Thus, the District Court

did not err in denying Mr. Keen’s motion for judgment of acquittal.

Reviewing Mr. Keen’s further challenge to the District Court’s jury

instructions for an abuse of discretion, see United States v. Eckhardt, 466 F.3d 938,

947–48 (11th Cir. 2006), we also conclude that the District Court did not abuse its

discretion by either rejecting his requested jury instruction or instructing the jury

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on the meaning of “agent.” Mr. Keen proposed a jury instruction that read in part:

“To be considered an agent, the Defendant must have somehow taken advantage of

his position as an employee of Dixie County to steal the money in question from

the County.” For the reasons we have discussed, however, the law does not require

a jury to find that Mr. Keen had “taken advantage of his position as an employee”

in order to find that he violated § 666. As a result, the District Court did not abuse

its discretion in rejecting Keen’s proposed instruction. See id. at 947. Also,

because the District Court’s jury instructions as to the definition of “agent” tracked

the language of § 666 and did not improperly guide the jury in its deliberations, we

conclude that the Court did not abuse its discretion in instructing the jury.

B. Statute of Limitations (No. 09-16027)

Mr. Keen challenges his fraud conviction under 18 U.S.C. §§ 666 and 2 on

another basis as well. He argues that the District Court incorrectly determined the

statute of limitations period for his offense and that a proper calculation would

have barred his conviction. We review de novo the District Court’s interpretation

and application of the statute of limitations. Porter v. Ray, 461 F.3d 1315, 1320

(11th Cir. 2006).

Mr. Keen claims the only limitations period pertinent to his case began on

the date when all the elements of a § 666 offense were first satisfied. That date was

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March 18, 2003, when Dixie County’s fraudulently-induced payments to Mr.

Keen’s construction contractor exceeded the $5,000-value threshold necessary for a

§ 666 violation. See 18 U.S.C. § 666(a)(1)(A)(i). According to Mr. Keen, this

means the five-year statute of limitations under 18 U.S.C. § 3282(a) expired on

March 18, 2008. And since the grand jury did not return the indictment against

him until September 23, 2008—well after March 18, 2008—he claims his

conviction was not valid.

This argument might have had merit had the government failed to prove that

Mr. Keen fraudulently induced Dixie County to disburse $16,368.40 in low-income

housing monies to his construction contractor on October 3, 2003. But the

government in fact did so, thus establishing all of the elements of a § 666 offense

within the five-year period prior to the filing of the indictment on September 23,

2008. As a result, Mr. Keen’s conviction did not violate the five-year statute of

limitations.

In effect, Mr. Keen asks this Court to disregard the October 3, 2003 violation

of § 666 and focus only on the March 18, 2003 violation for two reasons. The first

is the government’s delay in clarifying that it was “pursuing, as an individual

count, the $16,000 paid in October.” Mr. Keen points out that the government

made this clear only after the first three witnesses at the trial testified, and that such

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a delay was “fundamentally unfair.” Yet, he fails to identify how the government’s

presentation of evidence of the October payment was in any way inconsistent with

the indictment’s broad language, which alleged a single count of violating § 666

“between in or about March 2003, and on or about October 3, 2003.” Without

either any demonstrated inconsistency with the indictment or a more serious delay,

the government’s presentation of evidence within the time period set out in the

indictment does not reach the threshold of fundamental unfairness.

Mr. Keen’s second basis for asking this Court to disregard the October 3,

2003 violation in determining the statute of limitations is his belief that the relevant

limitations period should be defined only with respect to the earliest violation of

§ 666 within the period specified by the indictment. Thus, according to Mr. Keen,

a later violation of § 666 may not be prosecuted if doing so would contravene the

statute of limitations defined by an earlier violation of § 666.

In support, Mr. Keen cites as persuasive authority United States v. Yashar,

166 F.3d 873 (7th Cir. 1999), which holds that the limitations period generally

“begins to run once all elements of the offense are established, regardless of

whether the defendant continues to engage in criminal conduct.” Id. at 880.

However, Yashar is inapposite. In contrast with Mr. Keen, Yashar did not involve

the independent commission of a second § 666 offense. Rather, Yashar involved a

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defendant who, while continuing to commit related criminal conduct after

completing an earlier § 666 offense, never committed a second § 666 offense.

Nonetheless, the government in Yashar argued that the defendant’s continuing

criminal conduct, though not itself sufficient to constitute a § 666 offense, should

effectively extend the statute of limitations. See id. at 876. The Yashar Court

disagreed. Fearing that under the government’s approach “the limitations period

would be virtually unbounded,” id. at 879, the Seventh Circuit refused to extend

the statute of limitations on account of the related criminal conduct. At the same

time, that court gave no indication that it was limiting the possibility that a later,

independent § 666 offense could define the relevant limitations period.

Consequently, Yashar is not inconsistent with the approach we take here.

For all of these reasons, we conclude the District Court did not err in denying

Mr. Keen’s motion for judgment of acquittal based on violation of the statute of

limitations.

C. Sufficiency of the Evidence (Nos. 09-16028, 10-10438, and 10-10439)

1.

Turning next to the bribery case (Nos. 09-16028, 10-10438, and 10-10439),

Mr. Keen claims that the government failed to prove that he was either soliciting

bribes on behalf of Commissioners Driggers and Land or knowingly and

20


voluntarily participating in a conspiracy to solicit bribes. In support, he points to

evidence that he was assisting the FBI in investigating the bribery scheme. In3

light of this evidence, Mr. Keen claims there was no way for a rational trier of fact

to have found that he was guilty; thus, the District Court erred in denying his

motion for a judgment of acquittal.

We review this denial de novo and view the evidence in the light most

favorable to the government, drawing all reasonable inferences and credibility

choices in favor of the jury’s verdict. Tampas, 493 F.3d at 1297–98. Doing so

leaves us with no doubt that the evidence here is sufficient. The government

presented evidence that Mr. Keen initiated discussions regarding cash payments to

the County Commissioners, accepted cash bribes on their behalf, and told Agent

Quinn that Commissioners Driggers and Land preferred cash. There was also

evidence that Commisioners Driggers and Land understood that Mr. Keen was to

act as the intermediary for their bribes, just as he had done for them in the past.

Although Mr. Keen insists he was trying to assist the government, he failed to

record any of his meetings with Agent Quinn or the meeting with Commissioner

This evidence includes Mr. Keen’s call to Agent Thornburg on the morning of August3

10, 2006, telling Agent Thornburg about the bribery scheme; another call to Agent Thornburglater in the month to report more information; and his submission to the FBI of a surreptitiousrecording of a conversation he had had with Commissioner Land.

21


Driggers, during which he gave Commissioner Driggers $300. In light of all this

evidence, a reasonable factfinder could have disbelieved Mr. Keen’s assertion that

he was acting as an informant for the FBI, interpreted his calls to Agent Thornburg

as a hedge against being caught for the bribery offense, and instead found that he

was acting as a participant in the bribery conspiracy. See United States v. Lyons,

53 F.3d 1198, 1202 (11th Cir. 1995) (providing that a “jury is free to choose among

reasonable constructions of the evidence” in a case).

2.

For similar reasons and based on the same standard of review, we reject the

claims of Mr. Driggers and Mr. Land that the District Court erred in denying their

motions for judgment of acquittal on the conspiracy charge. Their claims both

hinge on the argument that because Mr. Keen was a government agent who

allegedly acted to thwart the purported conspiracy, the government could not have

proven that either of them had conspired with anyone other than a government

agent. For this reason, they insist that the conspiracy of which they may have been

a part carries with it no criminal liability. See United States v. Arbane, 446 F.3d

1223, 1228 (11th Cir. 2006) (“If there are only two members of a conspiracy,

neither may be a government agent or informant who aims to frustrate the

conspiracy.”). But as we have discussed, there was sufficient evidence for a

22


reasonable jury to conclude beyond a reasonable doubt that Mr. Keen was acting

not as a government agent but as a co-conspirator. Therefore these claims fail, and

the District Court did not err in so holding.

3.

Mr. Driggers and Mr. Land also argue that, as a matter of law, they should

have been acquitted by the District Court of the bribery charges because the

government failed to offer sufficient evidence regarding the county business

intended to be influenced by the bribe, as required for convictions under 18 U.S.C.

§ 666(a)(1)(B). Specifically, Mr. Driggers and Mr. Land allege the government did

not prove which particular business or transaction before the Dixie County Board

of Commissioners was connected to the bribes nor the value of the benefit to be

attained through the bribes. For these reasons, they contend, the District Court

erred in denying their motion for judgment of acquittal.

We review de novo the District Court’s denial of the motion for judgment of

acquittal based on the sufficiency of the evidence, viewing the evidence in the light

most favorable to the government, Tampas, 493 F.3d at 1297–98, and conclude that

the argument of Mr. Driggers and Mr. Land lacks merit. This Court has made it

clear that § 666(a)(1)(B) does not require the government to prove a specific

official act for which a bribe was received. See United States v. McNair, 605 F.3d

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1152, 1188 (11th Cir. 2010) (“Simply put, the government is not required to tie or

directly link a benefit or payment to a specific official act by that County

employee.”). Rather, the government must show only that Mr. Driggers and Mr.

Land “corruptly” accepted “anything of value” with the intent “to be influenced or

rewarded in connection with any business, transaction, or series of transactions” of

the Board. See id. (quoting 18 U.S.C. § 666(a)(1)(B)). That is precisely what the

government did when it presented evidence that Commissioners Driggers and Land

accepted bribes from Agent Quinn with the understanding that they would facilitate

the approval of zoning changes benefitting the fictitious company of “Sean

Michaels.” Further, by showing that the value of the bribes each received by

Commissioners Driggers and Land exceeded $5,000, the government presented

sufficient evidence to establish that the value of the transaction met the statutory

minimum of $5,000. See United States v. Townsend, 630 F.3d 1003, 1011–12

(11th Cir. 2011) (recognizing that “the value of an intangible in the black market of

corruption” may be “set at the monetary value of what a willing bribe-giver gives

and what a willing bribe-taker takes in exchange for the intangible”).

Consequently, the District Court did not err in denying the motion for judgment of

acquittal.

D. Trial Issues (Nos. 09-16028, 10-10438, 10-10439)

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1.

At the bribery trial of Mr. Keen, Mr. Driggers, and Mr. Land, the jury heard

an excerpt of a recording from a conversation between Commissioner Driggers and

Agent Quinn. In the excerpt, Commissioner Driggers told Agent Quinn that Mr.

Keen had “spent two years in jail . . . for buying votes.” A little while later, Mr.

Keen’s counsel requested a bench conference and moved for mistrial on the basis

that the government had improperly introduced prejudicial evidence of a prior

conviction. The District Court denied the motion and issued no curative

instruction. Mr. Keen challenges this denial on appeal and we review the District4

Court’s decision not to grant a mistrial for abuse of discretion. United States v.

Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009).

We have noted that “[a] trial judge has discretion to grant a mistrial since he

is in the best position to evaluate the prejudicial effect of a statement or evidence

on the jury.” United States v. Delgado, 321 F.3d 1338, 1346–47 (11th Cir. 2003)

(internal quotations and citations omitted). Because the government makes no

argument that introducing the statement of prior bad acts was proper, the decision

to grant a mistrial turned solely on whether “the defendant’s substantial rights

Mr. Keen’s counsel argued that a curative instruction would only make the problem4

worse.

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[were] prejudicially affected. Substantial rights are prejudicially affected when

there is a reasonable probability that, but for the remarks, the outcome of the trial

would have been different.” United States v. Newsome, 475 F.3d 1221, 1227 (11th

Cir. 2007). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” United States v. Adams, 74 F.3d 1093, 1097 (11th

Cir. 1996) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,

2068 (1984)). Thus, the question for us is whether the improper statement about

Mr. Keen’s prior conviction for “buying votes” undermined confidence in the

outcome of the trial.5

This is a difficult question in light of the potential prejudice inherent in the

statement heard by the jury. As we have said, we give deference to the decision of

the District Court because it is in “the best position to evaluate the prejudicial

effect” of the statement on the jury. Delgado, 321 F.3d at 1346–47. We are also

mindful that the statement was not the only evidence heard by the jury of Mr.

Keen’s prior corrupt activity. As even Mr. Keen acknowledges, “there was other

evidence that painted Keen in a bad light” separate from the improper statement

Contrary to the government’s assertion, Mr. Keen did not waive this issue by not5

objecting contemporaneously. We hold his objection was sufficiently timely to avoid waiver. Cf. United States v. Wilson, 149 F.3d 1298, 1301 n.5 (11th Cir. 1998) (noting “we are mindful ofa defense counsel’s dilemma: Objections may also serve to draw unwanted and unnecessaryattention to the prejudicial—albeit improper—conduct”).

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from the recording, including “evidence that he accepted a bribe on an earlier

occasion” on behalf of the commissioners. Thus, even if they had never heard the

improper statement at issue, the jury would still have been aware of past acts

casting a shadow over Mr. Keen’s conduct here. For these reasons, we cannot

conclude that the District Court abused its discretion in determining the lack of a

substantial due process violation.

However, just because this error does not require the reversal of the

conviction does not mean the prosecution did not still commit a serious error. We

have previously emphasized that “improper remarks and conduct . . . especially if

persistent, ought to result in direct sanctions against an offending prosecutor

individually.” United States v. Wilson, 149 F.3d 1298, 1304 (11th Cir. 1998). We

express no opinion regarding the appropriateness of sanctions here, but we remind

“the able attorneys who supervise federal prosecutors throughout this Circuit to

renew their efforts to maintain the high level of conduct that has traditionally

characterized the office of the United States Attorney.” United States v. Modica,

663 F.2d 1173, 1186 (11th Cir. 1981). It is our tradition in this Circuit to “support

district judges who take reasonable steps to correct prosecutorial conduct that is not

right.” Wilson, 149 F.3d at 1304.

2.

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Mr. Driggers also contends the District Court erred in denying his motion for

judgment of acquittal based on outrageous government conduct that fundamentally

undermined the integrity of the electoral process in Dixie County. Specifically,

Mr. Driggers emphasizes that the government not only paid him and Mr. Land over

$11,000 while they were engaged in a contested election campaign, but did so

knowing that both could use this money to purchase votes.

We review this claim de novo, see United States v. Savage, 701 F.2d 867,

868 n.1 (11th Cir. 1983), and determine that it lacks merit. “Outrageous

government conduct occurs when law enforcement obtains a conviction for

conduct beyond the defendant’s predisposition by employing methods that fail to

comport with due process guarantees.” United States v. Ciszkowski, 492 F.3d

1264, 1270 (11th Cir. 2007). As a threshold matter, since there was no evidence

presented that Commissioners Driggers and Land actually purchased votes and

since both ultimately lost their elections, Mr. Driggers fails to show that the

government in fact affected the electoral process in Dixie County, let alone that it

fundamentally undermined the integrity of the process. But even if he had shown

some impact on the electoral process, he still would have failed to show how the

government’s conduct did not comport with due process guarantees. Notably in

this regard, the District Court instructed the jury on the issue of entrapment, and the

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jury rejected this defense in the face of evidence of predisposition. For these

reasons, Mr. Driggers’s claim of outrageous government conduct fails.

E. Sentencing (Nos. 09-16027 and 09-16028)

1.

Mr. Keen argues that the District Court clearly erred in denying him a two-

level reduction in his offense level for the bribery charge since he claims he was

merely a “minor participant” in the bribery conspiracy. Under the Sentencing

Guidelines, a “minor participant” is one “who is less culpable than most other

participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2

cmt. n.5 (2008). In determining whether a “minor participant” reduction applies,6

we have said “the district court must measure the defendant’s role against her

relevant conduct, that is, the conduct for which she has been held accountable

under U.S.S.G. § 1B1.3.” United States v. Rodriguez De Varon, 175 F.3d 930, 934

(11th Cir. 1999) (en banc). In addition, “where the record evidence is sufficient,

the district court may also measure the defendant’s conduct against that of other

participants in the criminal scheme attributed to the defendant.” Id.

Reviewing for clear error the district court’s finding that Mr. Keen was not

entitled to a minor role reduction, United States v. Nguyen, 255 F.3d 1335, 1345

Mr. Keen was sentenced under the 2008 edition of the Guidelines Manual.6

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(11th Cir. 2001), we affirm on this issue under De Varon. In denying Mr. Keen’s

request for a role reduction in his offense level, the District Court concluded that

Mr. Keen “played a significant role in the fraud conspiracy and facilitated contact

between the undercover FBI agent and his codefendants.” Indeed, there was

evidence that Mr. Keen helped initiate the bribery scheme, set the amount of the

bribe, and accepted the role of conveying the bribes to the commissioners. Mr.

Keen’s “significant role” in the conspiracy is thus hardly incongruent with the

conduct for which he was held accountable. Consequently, even if Mr. Keen is

correct that, as a facilitator, he played a smaller role in the conspiracy than did Mr.

Driggers and Mr. Land, thereby addressing the second De Varon prong, he does not

show how the District Court clearly erred in its analysis under the first and more

important De Varon prong, measuring Mr. Keen’s role in the conspiracy against the

conduct for which he was held accountable. We therefore hold that the District

Court did not clearly err in denying Mr. Keen the two-level reduction.

2.

While convicted of fraud and bribery in two separate jury trials, Mr. Keen

was sentenced in a single proceeding. In calculating his sentence, the District

Court elected to “group” all of his offenses together pursuant to U.S.S.G § 3D1.2,

resulting in an adjusted offense level of twenty-six and a Guidelines range of sixty-

30


three to seventy-eight months. Mr. Keen argues that grouping his offenses in this

way was erroneous and that his resulting sentence of seventy-eight months

imprisonment was procedurally flawed. We agree.

Section 3D1.1 provides that the first step in the process of determining the

sentence of a defendant convicted of more than one count is for the court to group

the counts of conviction into “Groups of Closely Related Counts.” U.S.S.G

§ 3D1.1(a)(1). Section 3D1.2 then goes on to describe four situations where counts

“involve substantially the same harm” and hence where grouping is mandatory. Id.

§ 3D1.2. Here, the government argues that two situations, represented by

subsections (b) and (d), are applicable.

Subsection (b) provides that counts involve substantially the same harm

“[w]hen [the] counts involve the same victim and two or more acts or transactions

connected by a common criminal objective or constituting part of a common

scheme or plan.” Id. § 3D1.2(b). The government argues that the bribery and fraud

counts here satisfied this section because they (1) involved the same victim—the

citizens of Dixie County—and (2) had a common purpose—enriching Mr. Keen.

Setting aside for now the fact that the District Court never even mentioned

subsection (b) as applying to this case, the associated commentary to the guidelines

31


clearly indicates that subsection (b) does not apply. That commentary makes clear7

that subsection (b) “does not authorize the grouping of offenses that cannot be

considered to represent essentially one composite harm.” Id. § 3D1.2 cmt. n.4.

Clarifying what this means, the commentary presents an example of a defendant

who “is convicted of two counts of rape for raping the same person on different

days,” and concludes: “The counts are not to be grouped together.” Id. § 3D1.2

cmt. n.4 (example (5)). In light of this guidance, we cannot conclude that the fraud

and bribery counts—which involved different crimes occurring over three years

apart—were “part of a single course of conduct with a single criminal objective,”

let alone that they represented “essentially one composite harm to the same victim.”

Id. § 3D1.2 cmt. n.4. In sum, the government’s argument about the application of

subsection (b) lacks merit.

This leaves subsection (d) as the only possible basis for the District Court’s

conclusion that the fraud and bribery counts involved substantially the same harm.

And indeed, this was the only subsection cited by the District Court to support its

decision. Subsection (d) provides that counts involve substantially the same harm

Under Supreme Court precedent, “commentary in the Guidelines Manual that interprets7

or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or isinconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States,508 U.S. 36, 38, 113 S. Ct. 1913, 1915 (1993).

32


[w]hen the offense level is determined largely on the basis of the totalamount of harm or loss, the quantity of a substance involved, or someother measure of aggregate harm, or if the offense behavior is ongoingor continuous in nature and the offense guideline is written to coversuch behavior.

Id. § 3D1.2(d). Subsection (d) also lists certain types of offenses that “are to be

grouped under this subsection,” including the ones for fraud and bribery involved

here. Id. The District Court and the government have advanced four reasons why

Mr. Keen’s fraud and bribery counts fall under this subsection. None is persuasive.

First, the District Court appears to have reasoned that because Mr. Keen’s

convictions are listed by the subsection as ones “to be grouped under this

subsection,” id., grouping is automatically necessary. However, this argument

clashes with our case law, where we have held that the “mere listing” of these

offenses as types that “are to be grouped does not automatically necessitate

grouping.” United States v. McClendon, 195 F.3d 598, 601 (11th Cir. 1999)

(quotation marks omitted).

Second, the government argues that grouping was appropriate under the

second clause of subsection (d) because the offense behavior was “ongoing or

continuous in nature.” U.S.S.G. § 3D1.2(d). To support this contention, the

government notes that Mr. Keen attempted to conceal evidence of his fraud offense

as late as February 2005, after he had already been interviewed by the FBI. Yet,

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Mr. Keen’s efforts to conceal his crime from nearly two-and-a-half years earlier

neither amounted to a continuation of that crime nor bore any relation to the bribery

conspiracy later. Beyond this, there is no indication that § 2C1.1—the relevant

offense guideline for the bribery offense—“is written to cover [ongoing or

continuous] behavior,” as required by the second clause of subsection (d). Id. For

these reasons, this argument also fails.

Third, the government argues that grouping was appropriate under the first

clause of subsection (d) because “the offense level [for each count was] determined

largely on the basis of the total amount of harm . . . or some other measure of

aggregate harm,” id., specifically, “the aggregate harm and loss to the public trust

of Dixie County’s citizenry.” This argument does not persuade. The first clause of

subsection (d) obviously relates to offenses involving tangible harms, as measured

by financial harm or loss, drug quantity, or damage to the environment. See id. ch.

3, pt. D, introductory cmt.; id. § 3D1.2 cmt. n.6. There is no indication whatsoever

that the clause is intended to apply to offenses involving intangible harms to the

public trust. Indeed, if the clause were applied in that way, it would become

grossly over-inclusive, since nearly every criminal offense harms the public trust in

some way. The government’s argument thus attempts to broaden the scope of

subsection (d) in a way clearly inconsistent with the Guidelines.

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Finally, both the District Court and the government contend that the fraud

and bribery offenses “reveal[ed] a pattern of conduct which exploited the

defendant’s position in Dixie County and undermined the public trust.”

Consequently, the fraud and bribery offenses are sufficiently “closely related” and

“of the same general type” that they can be grouped according to Application Note

6 of the Commentary to § 3D1.2. See id. § 3D1.2 cmt. n.6 (“Counts involving

offenses to which different offense guidelines apply are grouped together under

subsection (d) if the offenses are of the same general type and otherwise meet the

criteria for grouping under this subsection.”). In support of this contention, the

government points to an example in the associated commentary. According to the

example, multiple counts of mail and wire fraud that involve “a monetary

objective” may be grouped together, even if they “arise from various schemes.” Id.

§ 3D1.2 cmt. n.6 (example 3).

However, this Court’s precedent forecloses the government’s theory. In

United States v. Harper, 972 F.2d 321 (11th Cir. 1992), we said that counts of drug

trafficking and laundering the associated proceeds were not “closely related” for

purposes of § 3D1.2(d), even though both were “quantitative in nature” and the

money laundering was necessarily connected to the drug trafficking. Id. at 322. In

United States v. Jenkins, 58 F.3d 611 (11th Cir. 1995), we declined to group

35


together counts of transporting stolen goods and money laundering, even though

both offenses were clearly committed with an overarching monetary objective. See

id. at 612–13. Finally, in McClendon, we held that counts of Medicaid fraud and

laundering the associated proceeds were not “closely related” for purposes of

§ 3D1.2(d) because the money laundered was not used to perpetuate the Medicaid

fraud. 195 F.3d at 602. This case law thus clearly precludes this Court from

holding, as the government urges, that offenses may be “closely related” even

though they took place approximately three years apart, were not “continuing

offenses,” and were independent schemes that had no necessary connection with

one another.

For all of these reasons, we conclude that the District Court erred in

grouping Mr. Keen’s fraud conviction and bribery convictions together pursuant to

§ 3D1.2. And this error was not harmless. Because his fraud and bribery offenses

were grouped, Mr. Keen wrongly received a six-level enhancement based on the

$32,010 he fraudulently obtained. That, in turn, pushed up his Guidelines range to

a range of sixty-three to seventy-eight months. Since nothing indicates the District

Court would have otherwise sentenced him to seventy-eight months imprisonment

absent this error, we remand this case to the District Court with a mandate to vacate

Mr. Keen’s sentence and re-sentence him. See United States v. Barner, 572 F.3d

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1239, 1247–48 (11th Cir. 2009) (“An error in the district court’s calculation of the

Sentencing Guidelines range warrants vacating the sentence, unless the error is

harmless. A Sentencing Guidelines miscalculation is harmless if the district court

would have imposed the same sentence without the error.”).

III. CONCLUSION

For these reasons, we affirm all convictions of Mr. Keen, Mr. Driggers, and

Mr. Land. However, we remand to the District Court with a mandate to vacate Mr.

Keen’s sentence and re-sentence him consistent with this opinion.

AFFIRMED IN PART AND CASE REMANDED FOR RE-

SENTENCING.

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